French v. Frazier's Adm'r
| Decision Date | 06 October 1832 |
| Citation | 30 Ky. 425 |
| Parties | French v. Frazier's Administrator. |
| Court | Kentucky Court of Appeals |
Pleading. Pleas. Scire Facias. Administrator. Practice. Evidence.
ERROR TO THE SHELBY CIRCUIT; TODD, JUDGE.
Monroe for plaintiff.
Richardson for defendant.
Frazier, in his life time, instituted an action of assumpsit against French for money had and received. Subsequently, the declaration was, amended by filing two special counts. The first alleges, in substance, that French promised in consideration that Frazier would place in his hands divers notes and accounts, which he held on various persons, payable in notes on the Bank of the Commonwealth, that he, French, would collect the same and pay over the amount when collected. The count then avers, that the plaintiff did place his notes and accounts in the defendant's hands, and that the defendant collected $300, in notes on the Bank of the Commonwealth, worth $300 in specie; yet the defendant had failed to pay over either the Commonwealth's Bank notes, when collected, or their value. The second special count, in substance avers that the defendant agreed with the plaintiff that if he would place in defendant's hands divers notes and accounts due by divers individuals, and payable to plaintiff in notes of the Bank of the Commonwealth, that he, the defendant, would collect them, and after paying himself the amount of $ , which the defendant had paid, or was bound to pay, as the surety of the plaintiff, that he, the defendant, would then pay over to the plaintiff whatever amount should remain in his hands after paying the suretyship as aforesaid. The count concludes by averring that, in consideration of the defendant's said undertaking, the plaintiff placed in the defendant's hands for collection, as aforesaid, divers notes and accounts, on divers individuals amounting to $ , which notes and accounts, or some of them, were by said individuals paid over to the defendant in notes on the Bank of the Commonwealth, and received by said defendant to a large amount, viz: $ ; and the plaintiff avers that said $ , in notes, were worth $ in specie, and the plaintiff further avers, that the debt for which the defendant was bound, as surety, as aforesaid, was by the plaintiff paid off and discharged on the day of , without the appropriation of said notes and accounts so collected by the defendant; yet the defendant hath not paid to the plaintiff said bank notes or their value, & c.
At the June term, 1829, the defendant filed the plea of non-assumpsit, and the plaintiff his rejoinder; and it was agreed on the record, that any thing might be given in evidence upon the trial of this issue that would be admissible under any legal plea.
At the February term, 1830, the death of the plaintiff was suggested, and an order made reviving the suit in the name of George Bayne, senior, as the administrator.
At the June term, 1830, the record states that " the parties came & c. and, on motion of George Bayne, administrator, & c.,' a scire facias is awarded him to renew this suit in his name, as administrator & c." A scire facias issued, bearing date the 20th Aug. 1830, returnable to the next September term, and was executed on the 28th of August, 1830.
At the September term, it seems that the cause was continued. At the March term, 1831, the defendant moved to quash the scire facias. The court overruled the motion. Thereupon, the defendant offered to file three pleas, which, being objected to by the plaintiff, the court rejected the first and second pleas and would not suffer them to be filed; but permitted the third plea to be filed. The first plea was in substance, that Bayne, was not the administrator of Frazier. The second plea was, in substance, that Frazier had not departed this life. The third plea was nul tiel record. There is a fourth plea spoken of as having been filed at the March term, 1831, but no such plea is copied in the record before us, and we know not its contents.
A trial took place, which resulted in a verdict and judgment for $70 in favor of Bayne; to reverse which, the writ of error is prosecuted. Seventeen errors are assigned, and the record contains ten bills of exception. We deem it unnecessary to enter into a minute investigation of each assignment of error, or to notice every thing which took place in the circuit court which can not be sustained. We shall briefly point out some errors for which judgment must be reversed, and lay down the principles which, on another trial, will probably dispose of the cause without difficulty.
We think the scire facias sufficient, and that the court did not err in refusing to quash it. We are also of opinion, that the judgment of the court upon the plea of nul tiel record was correct.
The court erred in rejecting the pleas Nos. 1 and 2 offered by the defendant. He was required by the scire facias to appear to show cause, if any could be shown, why Bayne, as administrator, should not sustain the action against him. If Bayne was not administrator, as alleged in plea No. 1, that was a complete bar to his prosecuting a suit in his name which had been instituted by Frazier. If Frazier was still alive, as averred in plea No. 2, he could have no administrator, and a grant of letters of administration would, in that event, be void. Nor would French be estopped, by the record of the county court granting the letters of administration, to deny the death of Frazier. As we perceive no objection to the form of these pleas, and as they constituted, if true, legal causes why Bayne, as administrator, should not proceed with the suit instituted by Frazier, they ought not to have been rejected. They were not pleas in abatement; hence there was no reason for rejecting them because they were not verified by oath.
Plea to scire facias to revive in the name of plaintiff, as administrator, that he was not administrator, good bar. Plea, to same, that original plaintiff was not dead, good. Defendant not estopped by administration granted by county court, nor by order of revivor in circuit court. Judgment on scire facias to be for or against administrator.
The court may have acted upon the opinion that the order of February, 1830, reviving the suit in the name of Bayne, as administrator, was conclusive upon French, and that he could not deny Bayne's character as administrator, in pleading to the scire facias. Such a view of the case can not be sustained, because, for any thing appearing to the contrary, the order of February, 1830, was ex parte. It does not appear that French assented to it. If it was obligatory, there was no necessity for a scire facias to revive.
Frazier having died before interlocutory or final judgment, according to the suggestion made on record, his administrator was entitled to a scire facias against the defendant in the action, as provided for in the 5th section of an act passed in 1801. See II Litt. Laws, 441. The object of the scire facias, as the section shows, is to summon the defendant to show cause why the action should not be sustained in the name of the administrator. The rules and regulations governing such a scire facias are the same as those applicable to the case of a scire facias after an interlocutory judgment. The rules and regulations thus referred to and adopted, may be seen in Tidd's Practice, 1168, 69 and 70, from which it will appear that the judgment ultimately to be rendered must be for or against the...
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